ADESUBOKAN v. YUNUSA (1971) 1 LRLR Vol 1 321

(1971) 1 LRLR Vol 1 321
Alternative Citation
(1971) 1 All NLR 225
The claim against the defendant is for “a declaration that the probate dated 29/6/66 granted to the defendant in the matter of Yunusa Atanda Saibu (deceased) be revoked as the said Yunusa Atanda Saibu was a Moslem, died as a Moslem and left heirs and wives who are all Moslems. The defendant is the sole executor of the said Yunusa Atanda Saibu.
The relevant paragraphs of the statement of claim are –
Paragraph 3. Save that the defendant will plead res judicata in respect of the distribution of the estate of the testator by the Native Court of Zaria, the defendant denies paragraph 5 of the statement of claim and puts the plaintiff to the strict proof thereof.
Paragraph 7. The defendant avers that the testator was a native of Lagos and was until his death domiciled in Lagos; he was employed by Nigerian Railways in 1930 at Ebute-Metta, Lagos and the Railways transferred him to Zaria where he died on the 31st August, 1965.
Paragraph 8. The defendant will contend at the trial of this action that the defendant at all material times are not bound by nor are they subject to the native law and custom of Zaria and that they are only subject to the native law and custom of Lagos.
Paragraph 9. The defendant will contend at the trial that the native law and customs of Lagos permit natives of Lagos irrespective of their religions to dispose of all their personal and real property by a will.
Paragraph 10. The defendant will contend at the trial that the testator did not make the Will dated 7th July, 1965 under Moslem law, but in accordance with the provisions of the Wills Act, 1837 an Act of general application throughout the Federation of Nigeria.
Paragraph 11. The defendant will at the trial rely on the will dated 7th July, 1965 and its probate granted on the 29th June, 1966.
The learned trial judge in a considered judgment found the following facts:-
1.     That a Moslem of Northern State of Nigeria is entitled to make a Will under the Wills Act, 1837 but he has no right to deprive by that will any of his heirs, who are entitled to share his estate under the Moslem law, of any of their respective shares granted to them by Moslem law;
2.     That in the case of a Will of moveable, the testator must comply with his personal law, that is, the native law and custom of his particular locality, unless such personal law is repugnant to natural justice, equity and good conscience or incompatible with any law for the time being in force which does not deprive any person of the benefit of the personal law of the testator; and
3.     That where the testator is a native within the meaning of the Land Tenure Law and the Will concerns immovable situated in the Northern States of Nigeria, the testator must comply with the native law and custom, relating to devolution, of the place where the land is situated.”
On these facts, the trial judge proceeded in his judgment to set aside the probate of the Will.
Unsatisfied with the judgment of the trial judge, the defendant/appellant appealed to the Supreme Court.
The Supreme Court stated that it was not properly established before the learned trial judge that the doctrine of Moslem law as expounded by the Maliki sect varies between the Northern States and the Southern States of Nigeria as found by him. In any case, the question hardly arises since there is no provision of any law which makes Moslem law, whether of the Maliki sect or any other sect, enforceable, either on its own, as such, or as part of any customary law, in any of the courts of the Southern States.
Thus, the appeal was allowed by the Supreme Court and the judgment of the trial court was set aside.

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